United States District Court, S.D. New YorkMar 22, 2002
99 Cr. 78 (RWS) (S.D.N.Y. Mar. 22, 2002)

99 Cr. 78 (RWS)

March 22, 2002


SWEET, U.S. District Judge.

Defendant Julio Rivera ("Rivera") pleaded guilty on June 4, 2001 to aggravated assault while in federal custody, in violation of 18 U.S.C. § 13 and 2, and N.Y.S. Penal Law § 120.10. For the reasons set forth below, Rivera will be sentenced to 77 months imprisonment, to be served concurrently with his undischarged term of imprisonment, followed by three years of supervised release. A special assessment fee of $100 is required and will be due immediately.

The Defendant

Rivera was born on August 7, 1971 in Guayama, Puerto Rico. He is the oldest of three children born to Julio Rivera, age 50, and Rosalia Rodriguez, age 52.

Rivera's family moved to the Bronx, New York in the early 1970's. In 1975, his parents separated, and Rivera and his siblings remained under the care of their mother under poor economic circumstances. After the parents subsequently divorced, Rivera's mother was remarried to Juan Gonzalez. Rivera completed the sixth grade, but was subsequently placed with the New York State Division for Youth ("DFY") based on adjudications imposed in the Bronx County Family Court. Rivera completed the eighth grade while in the DFY system, but failed to attend high school.

In 1993, Rivera married Leticia Rivera. The defendant has at least three children as a product of another relationship. As he has been in custody since late 1994, Rivera has no monthly income or expenses.

Rivera has a long history of mental health problems and anti-social disorders. A psychological report prepared in 1985 found him to have "minimal to non-existent insight with poor judgment, and his intellect was limited to within the border-line/mildly retarded range." A later report diagnosed him as "an individual with dangerously aggressive tendencies . . . unable to sustain a conforming adjustment." Rivera has also been described as having "Impulse Control and Intermittent Rage Disorders." He was treated by a psychiatrist while attending school, and while he was in custody in 1995. Rivera admits to having tried to commit suicide on multiple occasions, and was placed on a suicide watch on May 31, 2001 by the Federal Bureau of Prisons.

The Offense

On April 7, 1998, Rivera was transferred from the custody of the New York State Department of Correction to federal custody, pursuant to a writ of habeas corpus. He was housed at the Federal Bureau of Prisons, Metropolitan Correctional Center ("MCC") in New York City. According to Rivera, he was not told the purpose of the writ, but it was later revealed, after the instant offense, that the purpose of the writ was to allow the government to explore his willingness to serve as a cooperator in a prosecution of a gang. Rivera declined to cooperate and was transferred back to New York State custody on June 19, 1998.

Rivera was sentenced in connection with three separate Indictments in Bronx County Supreme Court on August 22, 1995. He was sentenced to 150 months to 25 years' imprisonment on each of two cases, and 25 years to life imprisonment on the other case, with all three sentences to run concurrently.

Rivera has been transferred multiple times since that date. He was transferred again to federal custody on February 11, 1999, and on April 30, 1999, was returned to New York State custody. On June 1, 2000, he was transferred again to federal custody, and returned to New York State custody on June 5, 2001. He has been in New York State custody since that time.

On June 5, 1998, while at the MCC but before meeting with the government to discuss the possibility of cooperation, Rivera assaulted two male inmates with a razor blade. He was charged in a two-count indictment, and on May 18, 2001 entered into a plea agreement with the government. On June 4, 2001, Rivera pleaded guilty to Count One, charging him with violating 18 U.S.C. § 13 and 2, and N.Y.S. Penal Law § 120.10.

The Guidelines

The Presentence Report prepared by the U.S. Probation Office assigns Rivera's offense conduct under the United States Sentencing Guidelines (the "Guidelines") at a base offense level of 15 for violation of 18 U.S.C. § 2. See U.S.S.G. § 2X2.1. Another four levels are added because the offense involved the use of a dangerous weapon. See U.S.S.G. § 2A2.2 (b)(2)(B). Pursuant to Guidelines § 2A2.2 (b)(3)(B), four additional levels are added as the victim sustained serious bodily injuries. Because Rivera qualifies as a career offender under § 4B1.1 (E), however, the applicable offense level is 24. Three levels have been subtracted based on Rivera's acceptance of responsibility, see U.S.S.G. § 3E1.1(a), (b), yielding a total offense level of 21.

Based on Rivera's extensive criminal history, the Probation Office has calculated a criminal history score of 17. Because the instant offense was committed while Rivera was imprisoned, two additional criminal history points are added, giving him a criminal history category of VI. The Guidelines range for an offender with a total offense level of 21 and a criminal history category of VI is 77 to 96 months.

Rivera also qualifies for a Criminal History Category of VI pursuant to § 4B1.1 since he is a career offender.

The Guidelines provide that "[i]f the instant offense was committed while the defendant was serving a term of imprisonment the sentence for the instant offense shall be imposed consecutively to the undischarged of imprisonment." U.S.S.G. § 5G1.3. Rivera has argued that § 5G1.3 should not be applied and that the sentence should run concurrently with the 25 years to life that he is currently serving pursuant to a state court conviction. He points to 18 U.S.C. § 3584 (a), which provides:

[I]f a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively

Congress has set forth factors to be considered in imposing consecutive or concurrent times, 18 U.S.C. § 3584 (b), by referring to the enumerated factors in 18 U.S.C. § 3553 (a).

The factors include: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (3) the kinds of sentences available; (4) the kinds of sentences and the sentencing range established for the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines that are issued by the Sentencing Commission pursuant to 28 U.S.C. § 994 (a)(1) and that are in effect at the time of sentencing; (5) any pertinent policy statements issued by the Sentencing Commission; (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to victims. 18 U.S.C. § 3553 (a).

Although the Second Circuit has not squarely addressed the issue as to the discrepancy between § 3584 and the Guidelines, several circuits, using different rationales, have concluded that a court retains the power to make the determination. Most courts have found that § 3584 does not preclude the Commission from limiting the Court's discretion, since the Court can depart on the basis of a mitigating or aggravating factor not adequately taken into account by the Guidelines. See, e.g., United States v. Bell, 46 F.3d 442 (5th Cir. 1995); United States v. Brewer, 23 F.3d 1317 (8th Cir. 1994); United States v. Flowers, 995 F.2d 315 (1st Cir. 1993); United States v. McFarland, 37 F.3d 1235 (7th Cir. 1994);United States v. Harris, 990 F.2d 594 (11th Cir. 1993); U.S. v. Rogers, 897 F.2d 134 (4th Cir. 1990); see also United States v. Higgins, 128 F.3d 138, 141-43 (3d Cir. 1997) (finding prior holding of United States v. Nottingham, 898 F.2d 390 (3d Cir. 1990), no longer applicable to the validity of § 5G1.3 (a)). The Court of Appeals has in analogous circumstances relied on its power to depart as the rationale behind a district court's decision to confer a sentence outside the prescribed range, but has acknowledged the argument that departure need not be the rationale. See United States v. Hui, 83 F.3d 592 (2d Cir. 1996) (interpreting court's sentence as a departure from the prescribed range under § 5G1.2); see also United States v. Rahman, 189 F.3d 88, n. 35 (2d Cir. 1998) (acknowledging merits of argument that the discretion in section 3584 cannot be restricted by section 5G1.3, but relying on the reasoning in Hui).

The circumstances of this case warrant a concurrent sentence regardless of whether the rationale for doing so is departure pursuant to the requirements of the Guidelines. The combination of Rivera's diagnosed psychiatric disorders and his transfer to federal custody without explanation predictably exacerbated his reaction, creating a unique circumstance which removes this case from the heartland of cases ordinarily considered under § 5G1.3. Further, Rivera's federal offense was not pursuant to any continuation of organized criminal conduct, but instead was a discrete, separate, and partially provoked product of a psychiatric disorder which manifested itself under the extreme conditions of Rivera's confinement.

The Sentence

Rivera will be sentenced to 77 months imprisonment, to be served concurrently with the term he is serving for the state law violation. This term in custody will be followed by three years of supervised release.

Rivera is to report to the nearest Probation Office within 72 hours of his release from custody, and supervision shall be in the district of residence. As mandatory conditions of supervised release, Rivera shall (1) not commit another federal, state, or local crime; (2) not illegally possess a controlled substance; (3) not possess a firearm or destructive devise; and (4) refrain from any unlawful use of a controlled substance. Rivera shall submit to one drug test within fifteen days of placement on supervised release and at least two unscheduled drug tests thereafter, as directed by the probation officer. The standard conditions of supervision (1-13) will apply.

No fine will be imposed given Rivera's inability to pay. However, a special assessment fee of $100 is mandatory and is due immediately.

This sentence is subject to modification at the sentencing hearing now set for March 25, 2002.

It is so ordered.